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No. 18-0363 Lawyer Disciplinary Board v. Doheny 

WOOTON, J., dissenting: 

The respondent, Patrick Doheny, appears before this Court once again 

challenging the propriety of the discipline recommended by the Hearing Panel 

Subcommittee (“HPS”) of the Lawyer Disciplinary Board. Although the HPS 

originally recommended that this Court dismiss his West Virginia reciprocal lawyer 

disciplinary proceeding, this Court directed the HPS to reconsider the recommended 

discipline after the majority found “no error in the [Office of Disciplinary Counsel’s 

(“ODC”)] decision to pursue this matter as a reciprocal disciplinary action.” Law. 

Disciplinary Bd. v. Doheny, 247 W. Va. 53, 62, 875 S.E.2d 191, 200 (2022) 

(“Doheny I”). 

On remand, the HPS reluctantly changed its recommended discipline. 

While the current recommended discipline —an admonishment— represented a 

“unanimous” decision of the three member HPS, two of the three members 

submitted a concurring decision expressing profound disagreement with the majority 

opinion in Doheny I and noting that they were constrained by this Court’s 

interpretation of the West Virginia Rules of Lawyer Disciplinary Proceeding in that 

case. Unfortunately, the majority has declined to revisit its prior erroneous ruling 

and again improperly finds that the ODC had authority to impose reciprocal 

FILED 

June 7, 2024 

released at 3:00 p.m.

C. CASEY FORBES, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 
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discipline based on Mr. Doheny’s private reprimand in another jurisdiction. 

Accordingly, I respectfully dissent. 

Consistent with my dissent in Doheny I, the process by which the ODC 

proceeded with Mr. Doheny’s discipline is fatally flawed. Although the ODC could 

have proceeded with discipline against Mr. Doheny under Rule 3.19 of the West 

Virginia Rules of Lawyer Disciplinary Procedure,1 it chose to forego the procedural 

protections provided under that rule and, instead, purported to institute reciprocal

discipline under the abbreviated proceedings outlined in Rule 3.20. ODC offers no 

reasonable explanation for choosing this process, despite the fact that the discipline 

imposed elsewhere cannot be imposed in West Virginia. When we considered this 

matter previously, I stated:

As per Rule 3.20(a) and (d), in reciprocal proceedings the Hearing 

Panel Subcommittee is permitted to take action without a formal 

hearing and the respondent may only challenge the validity of the 

disciplinary order in the foreign jurisdiction. Further, reciprocal 

discipline under Rule 3.20 makes no provision for a mitigation hearing 

as in Rules 3.18 and 3.19. Very clearly, the procedural protections 

afforded under Rules 3.18 and 3.19 differ meaningfully from the 

abbreviated proceedings outlined in Rule 3.20. 

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See R. 3.19 (providing for disciplinary charges to be pursued based on attorney’s felony 

conviction). 
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Doheny I, 247 W. Va. at 66, 875 S.E.2d at 204 (Wooton, J., dissenting). As such, 

reciprocal disciplinary proceedings provide a “short-cut” for ODC — one which it 

took at its own peril. 

The plain language of Rule 3.202 limits our ability to impose reciprocal 

discipline to instances where a lawyer received public discipline elsewhere. Because 

the discipline instituted against Mr. Doheny in the State of Pennsylvania was a 

private reprimand, it is by definition not public discipline. W. Va. R. Law. 

Disciplinary Proc. 3.20(b). Accordingly, the ODC is not allowed to proceed under 

Rule 3.20 and avail itself of the truncated procedure afforded by that rule. Further, 

“[t]he provisions of Rule 3.20 of the West Virginia Rules of Lawyer Disciplinary 

Procedure require the imposition of the identical sanction imposed by the foreign 

jurisdiction unless one of the four grounds provided for challenging the discipline 

imposed by a foreign jurisdiction is both asserted and established.” Syl. Pt. 4, Law.

Disciplinary Bd. v. Post, 219 W. Va. 82, 631 S.E.2d 921 (2006) (emphasis added); 

See W. Va. R. Law. Disciplinary Proc. 3.20 (e).3 As I opined in Doheny I: “the 

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 Rule 3.20(b) provides, in pertinent part, that “[a]ny lawyer who is a member, active or 

inactive, of The West Virginia State Bar against whom any form of public discipline has been 

imposed by the authorities of another jurisdiction, whether state or federal . . . shall notify the 

Office of Disciplinary Counsel of such action in writing within ten days thereof.” (Emphasis 

added). 

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 Rule 3.20(e) provides exceptions to the imposition of identical discipline in limited 

circumstances where: 
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requirement that reciprocal discipline procedures be limited to public discipline 

rendered elsewhere is a simple matter of practicality: because West Virginia does 

not recognize private discipline, rendering reciprocal, identical discipline in West 

Virginia is an impossibility.” Doheny I, 247 W. Va. at 67, 875 S.E.2d at 205 

(Wooton, J., dissenting); see Daily Gazette Co. v. Comm. on Legal Ethics of the W. 

Va. State Bar, 174 W. Va. 359, 326 S.E.2d 705 (1984) (holding private discipline of 

attorneys in West Virginia unconstitutional as violation of open courts provision in 

West Virginia Constitution art. III, § 17). The majority concedes that identical 

discipline was not available, notes that the ODC realized that it would need to “seek 

a different discipline because this Court has held that the West Virginia Constitution 

does not allow for the imposition of a private discipline,” but suggests that the ODC 

could somehow cure this defect by providing Mr. Doheny with notice. I respectfully 

disagree. 

(1) the procedure followed in the foreign jurisdiction did not comport with the 

requirements of due process of law; (2) the proof upon which the foreign 

jurisdiction based its determination of misconduct is so infirm that the Supreme 

Court of Appeals cannot, consistent with its duty, accept as final the 

determination of the foreign jurisdiction; (3) the imposition by the Supreme 

Court of Appeals of the same discipline imposed in the foreign jurisdiction 

would result in grave injustice; or (4) the misconduct proved warrants that a 

substantially different type of discipline be imposed by the Supreme Court of 

Appeals. 

Based upon my review, however, none of these circumstances are presently before this Court, nor 

does ODC argue that any are present. Notwithstanding, the majority concludes that it was 

appropriate for the Court to “find sua sponte that the underlying criminal misconduct itself requires 

a substantially different type of discipline.” 
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I am acutely aware of the substantial responsibility that arises from the 

fact that “[t]his Court is the final arbiter of legal ethics problems and must make the 

ultimate decisions about public reprimands, suspensions or annulments of attorneys’ 

licenses to practice law.” Syl. Pt. 3, Comm. on Legal Ethics of the W.Va. State Bar 

v. Blair, 174 W.Va. 494, 327 S.E.2d 671 (1984). Although I respectfully consider 

the HPS’s current recommendation, I am uniquely mindful that the HPS reluctantly 

recommended an admonishment due to the constraints imposed on it by this Court’s 

decision in Doheny I. While “[t]he principle purpose of attorney disciplinary 

proceedings is to safeguard the public’s interest in the administration of justice,” this 

Court also has an obligation to ensure that the lawyer is afforded due process of law 

and to guarantee that the ODC follows the Rules of Disciplinary Proceedings —rules 

of this Court’s own making— in instituting discipline. Compare Daily Gazette Co. 

Inc., 174 W. Va. at 360, 326 S.E.2d at 706, Syl. Pt. 3 (quoted above) with Law. 

Disciplinary Bd. v. Stanton, 233 W. Va. 639, 648, 760 S.E.2d 453, 462 (2014) (“We 

have recognized that in attorney disciplinary proceedings, a lawyer is entitled to due 

process of law. Generally, due process requires that the attorney be given notice of 

the allegations against him and an opportunity to be heard.” (citation omitted)). 

Despite Mr. Doheny’s irresponsible criminal acts, I cannot sit idly by 

while the Court contorts its own rules. In a veiled attempt to justify the abandonment 

of our rules the majority opinion places significant emphasis on the injuries sustained 
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by Mr. Doheny’s victim. Make no mistake – I do not condone Mr. Doheny’s criminal 

behavior, nor do I minimize the injuries or the impact those injuries have had on his 

victim; however, neither of those justify the ODC’s calculated decision to invoke 

the abridged disciplinary procedures afforded by Rule 3.20 rather than pursuing 

discipline in accordance with Rule 3.19. As the current HPS recommendation stems 

from the same flawed proceeding that I discussed in Doheny I and the majority 

remains steadfast in its tortured reading of Rule 3.20, I, once again, respectfully 

dissent.